the Defendants' reliance on the Supreme Court's decision in Miller v. Highland County,
274 Va. 355 (2007), for the purposes their pleas in bar, at least as it pertains to the
Plaintiff's initial argument that the 2003 Ordinance did not re-zone the Daughter Parcels,
is misplaced. Plaintiff should be given leave to amend to correct this technical error. This
is especially so given that the Supreme Court's decision in Miller was issued on
September 14, 2007, several months after the June 2007 filing of the Plaintiff's
Complaint.
It is evident from the record (see e.g., Exhibit A) that the City's official Tax Maps
as late as January 2007, showed 56-40.4 as covering the area of the entire Parent Parcel.
Plaintiff claims that the 2003 Ordinance did not re-zone, and could not have re-zoned, the
parcels given that Tax Map 56-40.4 was the tax map and parcel number that applied to
the entire Parent Parcel until more than three years after the 2003 Ordinance. Simply put,
in 2003 when City Council zoned 56-40.4 as an IPP, 56-40.4 was the tax map-parcel
designation of the entire Parent Parcel, and therefore the entire Parent Parcel was zoned
IPP. This conclusion is bolstered by the fact that every map produced by the city
showing the IPP's showed the entire Parent Parcel as being IPP zoned.*
B. Defendant City's Demurrer Grounds
*Assuming arguendo that the 2003 Ordinance could fairly be read to re-zone the Daughter Parcels, this zoning was
void ab initio in that it was in essence, an accidental rezoning by City Council. The Tax Maps in effect in 2003 showed the
Parent Parcel as 56-40.4. This was true at all times up until early 2007.